Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 558 (MP)

Sukhdev Singh Chouhan v. State of M. P.

2025-08-25

ASHISH SHROTI

body2025
ORDER : ASHISH SHROTI, J. The petitioner has filed the present writ petition being aggrieved by order dated 15/6/2022 (Annexure P/1) passed by the disciplinary authority, whereby, punishment of reduction of one increment in the pay-scale for a period of one year with cumulative effect has been imposed upon the petitioner on account of misconduct found proved in the departmental enquiry. The petitioner has also challenged the order dated 20/3/2023 (Annexure P/2), whereby, the appellate authority has dismissed the appeal. 2. The facts necessary for decision of this case are that the petitioner was initially appointed as Constable in the Police Department on 30/4/1991. He was granted promotion on the post of Head Constable and Sub Inspector in the year 2005 & 2011 respectively. Lastly, he was promoted to the post of Sub-Inspector on 28/4/2015 and was posted at Police Station Umari, District Bhind. One Ravindra Singh Gurjar was the Inspector and was posted as Station House Officer of Police Station Umari,District Bhind. 3 . On 20/2/2020, on receiving information, the petitioner intercepted a Swift Car near village Pandari which was going towards Etawah, (U.P.). Two persons, sitting in the car, tried to run away but were caught by the police team. The petitioner seized about 4.8 kgs of Ganja from accused Hemant Gurjar and about 3.9 kgs Ganja from accused Gyan Singh Banjara. The petitioner, being the head of the police team, seized and sealed the contraband and registered Crime No.46/2020 against both the accused persons for offence punishable under Section 8/20 (Kha) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity hereinafter shall be referred to as “NDPS Act”). 4. From the records, it is gathered that vide order dated 24/2/2020, the investigation of the case was handed over to Shri Sanjeev Nayan Sharma, Inspector posted at P.S. Raun, District Bhind. It is alleged against Shri Ravindra Singh Gurjar that despite transfer of Investigation to Shri Sharma, the case diary was not handed over to him. Against the petitioner, it is alleged that even though the contraband was seized on 20/2/2020, the same was not immediately sent to the Forensic Science Laboratory and after lapse of about 20 days, the same was produced before the Nayab Tehsildar, Umari Circle allegedly in compliance of provisions of Section 52-A of the NDPS Act. Against the petitioner, it is alleged that even though the contraband was seized on 20/2/2020, the same was not immediately sent to the Forensic Science Laboratory and after lapse of about 20 days, the same was produced before the Nayab Tehsildar, Umari Circle allegedly in compliance of provisions of Section 52-A of the NDPS Act. It is also alleged against the petitioner that before the Nayab Tehsildar, cloth containing sealed contraband was opened and samples were prepared and contraband were again sealed. 5. A preliminary enquiry was conducted by DSP, Headquarter, Bhind and he submitted his report on 29/6/2020 (Annexure R/1) against the petitioner. He found that he was negligent in not sending the contraband immediately to the FSL and violating the instructions issued by the Central Govt., he produced the contraband before the Naib Tehsildar, where, the seal of the cloth containing contraband was brock opened and samples were prepared. It was further found that the investigation was already handedover to Shri Sanjeev Nayan Sharma and therefore, the act of petitioner taking the contraband to Naib Tehsildar was illegal and unauthorized. Based upon the preliminary enquiry, a show cause notice was issued to the petitioner on 14/8/2020 (Annexure P/4) to which the petitioner submitted reply on 20/9/2020 (Annexure P/5). Petitioner denied the allegations leveled against him. The explanation of the petitioner since was not found satisfactory, a common charge-sheet was issued to him as also to Shri Ravindra Singh Gurjar on 15/4/2021 (Annexure P/6). In the charge-sheet, following two charges were levelled against the petitioner:- 6. The petitioner submitted reply to the charge-sheet and again denied the charges. Superintendent of Police, Morena was then appointed as Enquiry Officer and Additional Superintendent of Police was appointed as Presenting Officer. The Enquiry Officer conducted the enquiry, wherein, 3 prosecution witnesses and 18 documents were examined in support of authorities. The petitioner, on being asked, stated that he does not want to lead evidence in defence. The Enquiry Officer then submitted his report before the disciplinary authority, wherein, he found both the charges proved against the petitioner. The disciplinary authority then issued a show cause notice to the petitioner on 14/6/2022 (Annexure P/8), thereby, forwardingcopy of the enquiry report to him and asking him to submit his explanation to the findings recorded by the Enquiry Officer. The petitioner submitted his reply which is placed on record as Annexure P/9. 7. The disciplinary authority then issued a show cause notice to the petitioner on 14/6/2022 (Annexure P/8), thereby, forwardingcopy of the enquiry report to him and asking him to submit his explanation to the findings recorded by the Enquiry Officer. The petitioner submitted his reply which is placed on record as Annexure P/9. 7. After considering the material collected during the course of enquiry and the explanation given by the petitioner to the findings recorded by the Enquiry Officer, the disciplinary authority passed the punishment order dated 15/6/2022, wherein, the punishment of reduction of one increment in the pay scale for one year with cumulative effect was imposed upon the petitioner. Being aggrieved, the petitioner filed an appeal which was disposed of vide order dated 20/2/2023. The appellate authority slightly modified the punishment order by imposing the punishment of reduction of one increment in the pay-scale with cumulative effect. Challenging the aforesaid two orders, the petitioner is before this Court. 8. The learned senior counsel for the petitioner submitted that the petitioner did not commit any misconduct and only followed the procedure as prescribed under Section 52-A of the NDPS Act. He relied upon the decision of Apex Court in the case of Union of India Vs. Mohanlal and another, reported in (2016) 3 SCC 379 . He further submitted that the petitioner specifically denied the charges. In relation to charge no.1, it was his case that after completing the preliminary procedure, he handed over the case diary to Shri Ravindra Singh Gurjar, who was initially the Investigating Officer. He stated that it was the responsibility of Investigating Officer to have sent the contraband for examination to FSL and petitioner cannot be held responsible for delay in sending the same. In relation to charge no.2, it was the specific case of the petitioner that the order transferring the investigation to Shri Sanjeev Nayan Sharma was never communicated to the petitioner and therefore, he was not aware about such transfer and on the instructions of Shri Ravindra Singh Gurjar, he took the contraband before the Naib Tehsildar. The learned Senior Counsel for the petitioner further submitted that the petitioner’s defence was not considered by thedisciplinary authority as also by the appellate authority. The learned Senior Counsel for the petitioner further submitted that the petitioner’s defence was not considered by thedisciplinary authority as also by the appellate authority. It is his further submission that the appellate authority failed to pass the speaking order, which was incumbent upon him in view of Apex Court decision in the case of Kanti Associates Private Limited and Another Vs. Masood Ahmed Khan and Others, reported in (2010) 9 SCC 496 . 9. The learned Senior Counsel also submitted that even if the allegations leveled against the petitioner are accepted, same would not amount to misconduct inasmuch as no unlawful benefit is gained by the petitioner by such act. 10. On the other hand, learned counsel for the State supported the impugned orders and submitted that it was incumbent upon the petitioner to have sent the contraband to FSL as soon as possible and the delay in such matters gives benefit to the accused persons during trial. He also submitted that the factum of transfer of investigation to Shri Sanjeev Nayan Sharma was known to everyone and the defence taken by the petitioner is false. He also submitted that both the authorities have passed the impugned orders after appreciating the evidence and, therefore, there is no scope for interference by this Court in exercise of powers of judicial review. 11. Considered the arguments and perused the record. 12. The interference by this Court in disciplinary matters is well defined by the Apex Court in the case of Union of India & Ors. Vs. P. Gunasekaran reported in (2015) 2 SCC 610 , wherein, the Apex court in para 12 held as under:- " 12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence." 13. Considering the arguments advanced by learned senior counsel for the petitioner, it is evident that the challenge to the impugned orders is made not because of any defect in the departmental enquiry but on the ground that there is no evidence against the petitioner supporting the punishment and the act alleged is not a misconduct. Therefore, this Court is required to see as to whether there is any material available on record to justify the punishment imposed upon the petitioner. 14. From the records of the case following facts are not disputed: (i) the petitioner seized and sealed the contraband recovered from the accused persons on 20/2/2020 and registered the criminal case for offence under Section 8/20 (Kha) of NDPS Act; (ii) on 3/3/2020, the petitioner produced the seizedcontraband before the Naib Tehsildar, wherein, seal of cloth containing contraband was brock opened and samples were prepared and the contraband was again sealed; (iii) in between, the investigation was directed to be transferred to Shri Sanjeev Nayan Sharma vide order dated 24/2/2020, which was not addressed to the petitioner; and (iv) sealed contraband was thereafter sent to FSL after lapse of 20 days. 15. The first charge leveled against the petitioner is regarding delay in sending the contraband to FSL for examination. 15. The first charge leveled against the petitioner is regarding delay in sending the contraband to FSL for examination. In this regard, admittedly, there was delay of about 20 days in sending the contraband to FSL for examination. The petitioner took a defence that as soon as he completed the priliminary procedure, he handed over the case diary to Shri Ravindra Singh Gurjar, who was initially the Investigating Officer. 16. So far as second charge is concerned, it was alleged against the petitioner that despite the investigation handed over to Shri Sanjeev Nayan Sharma, he took the seized contraband to Naib Tehsildar and thus, committed act of serious negligence in performance of his duties. In this regard, petitioner took a specific defence that the order dated 24/2/2020, whereby, the investigation was shifted to Shri Sanjeev Nayan Sharma was not addressed to him and, therefore, he was not aware about the said fact. It was his specific defence that he took the contraband before the Naib Tehsildar pursuant to the instructions given by Shri Ravindra Singh Gurjar. He, therefore, submitted that there is no act of misconduct committed by him. 17. From perusal of the order passed by the disciplinary authority as also by the appellate authority, it is revealed that the defence taken by thepetitioner in respect of both the charges is not considered by either of the authorities. Needless to observe, if the defence of the petitioner is found correct, the allegations made against him would not be established against him. 18. The Apex court in the case of Mohanlal (supra) has interpreted the provisions of Section 52-A of the NDPS Act with regard to seize and sampling of the contrabands. The Apex Court has held as under:- “ 15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer- in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in- charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter andtake suitable steps in the above direction. 19. The Central Government would, therefore, do well, to re-examine the matter andtake suitable steps in the above direction. 19. Mr Sinha, learned Amicus Curiae, argues that if an amendment of the Act stipulating that the samples be taken at the time of seizure is not possible, the least that ought to be done is to make it obligatory for the officer conducting the seizure to apply to the Magistrate for drawing of samples and certification, etc. without any loss of time. The officer conducting the seizure is also obliged to report the act of seizure and the making of the application to the superior officer in writing so that there is a certain amount of accountability in the entire exercise, which as at present gets neglected for a variety of reasons. There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act. There is equally no doubt that the process of making any such application and resultant sampling and certification cannot be left to the whims of the officers concerned. The scheme of the Act in general and Section 52-A in particular, does not brook any delay in the matter of making of an application or the drawing of samples and certification. While we see no room for prescribing or reading a time-frame into the provision, we are of the view that an application for sampling and certification ought to be made without undue delay and the Magistrate on receipt of any such application will be expected to attend to the application and do the needful, within a reasonable period and without any undue delay or procrastination as is mandated by sub-section (3) of Section 52-A (supra). We hope and trust that the High Courts will keep a close watch on the performance of the Magistrates in this regard and through the Magistrates on the agencies that are dealing with the menace of drugs which has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Magistracy in this country addresses a problem of such serious dimensions.” 19. From the aforesaid legal position, it is evident that the sampling was required to be done before the Naib Tehsildar only, therefore, taking the contraband before the Naib Tehsildar would not be a misconduct on the part of the petitioner. 20. After this, there remains the allegation of delay in sending the contraband to FSL. In this regard, the primary responsibility to send contraband to FSL, is on the Investigating Officer. Admittedly, the petitioner was not the Investigating Officer and it was his specific defence that after completing priliminary procedure on 20/2/2020, he handed over the case diary to Shri Ravindra Singh Gurjar. Both the authorities have not recorded finding that the defence taken by petitioner is factually incorrect. Therefore, in the facts available on record, the petitioner cannot be held responsible forthe delay caused in sending the contraband to FSL. Regarding second charge, the petitioner’s defence that he was not aware about transfer of investigation to Shri Sharma and further that he took contraband to Naib Tehildar pursuant to instructions of Shri Gurjar, is not held to be incorrect. 21. Considering the aforesaid, this Court is of the opinion that both the authorities have failed to consider the defence taken by the petitioner. Further, the allegations made against the petitioner would not constitute misconduct in the facts and circumstances of the case. 22. From the discussion made above, this Court finds that the petitioner cannot be held responsible for the acts alleged against him. Consequently, the order dated 15/6/2022 (Annexure P/1) and order dated 20/3/2023 (Annexure P/2) are hereby set aside. The respondents are hereby directed to restore the benefit of the reduced increment in petitioner’s favour, as if the punishment order was never passed. 23. Petition stands allowed and disposed of accordingly.